Department of Administration - A Case Study on the Draft 1984 Act

Transcription

1 GATEWAY REFERENCE: 5822 RACE EQUALITY IMPACT ASSESSMENT - EXECUTIVE SUMMARY 1. The purpose of mental health legislation is primarily to protect patients and others from harm that can arise from mental disorder. It sets out the procedures that must be followed when it becomes necessary to treat someone for their mental disorder without their consent and the safeguards and support there should be for the patient. It is important that these processes are seen to apply consistently to all people. But the Government recognises that the effects of mental health legislation apply disproportionately to some BME groups. Research evidence and data shows that disproportionate numbers of BME patients are subject to certain parts of mental health legislation, but there is no agreed explanation of why this is. 2. Some concerns identified through the REIA have already been addressed in the move from the draft 2004 Bill to the amending proposals and others addressed in the actions generated by the REIA. But we need to go further. We will build on the REIA with a new governance structure for ensuring that we deliver race equality across the health & social care sector and develop a comprehensive programme and action plan to: implement the actions stemming from this REIA; continue monitoring race equality in mental health services; continue addressing areas of adverse impact. 3. We are already addressing known disparities in the impact of the 1983 Act through Delivering Race Equality and we are committed to moving to a position where the operation of the Mental Health Act is further aligned with the positive general duties arising from the Race Relations Amendment Act 2000 to ensure that people from BME backgrounds are not adversely affected when using mental health services. 4. The Department of Health is particularly grateful to the Advisory Group on the REIA, chaired by Lord Patel of Bradford OBE. The Advisory Group devised an analysis tree to look at the impact of the amendments to the definition, SCT and professional role on other parts of the Act. The Advisory Group s membership is at Annex B. 5. The following list summarises the changes made to the legislative proposals and the draft Code of Practice as a result of this and the work done for the 2004 Bill, and further actions to take forward. We will work with BME stakeholders to implement the actions arising from the 1

2 REIA, as part of the new governance structure for delivering race equality. ACTION TAKEN The REIA work for the draft 2004 Bill contributed to the Department s decision to adapt or not pursue the following policies: adapted Supervised Community Treatment and introduced clauses in the amending Bill that mean all patients must first be detained and assessed in detention in hospital before they are placed on SCT and no one can be detained in a community setting. BME groups had suggested that there would be a lower threshold for using compulsory community treatment orders in the draft 2004 Bill and this could affect BME patients; decided against a separate condition for patients at substantial risk of causing harm to another person (BME groups felt their communities would suffer from stereotyping) and instead has largely retained the current structure for criteria for detention; decided against the policy that anyone should have the statutory right to request the relevant authority to consider an examination against the first four criteria for detention (initial examinations). BME groups felt that patients could be more likely to be subject to vexatious requests; decided against the policy that Mental Health Tribunals could sit with fewer than three members. Instead the current MHRT with three panel members will be maintained; decided against the policy that police could enter premises without a warrant. There was concern from BME groups that patients would be subject to urgent entry of their premises; decided against the policy to stop free aftercare services for compulsory patients after 6 weeks. Instead we will maintain the status quo so that all aftercare services are free for people treated under compulsion. As a result of the REIA work this year on the amendments to the 1983 Act, the Department has introduced into the amending Bill and the draft Code of Practice: a regulation making power on Bournewood safeguards to allow for collection of data on patients for whom an application for a deprivation of liberty is made, including data on ethnicity, recognising BME groups concerns that Bournewood provisions should be monitored by ethnicity; a clause that states that AMHPs must always act on behalf of a Local Authority, to emphasise their independence from assessing doctors. Training for AMHPs will address the skills required for independent practice and the approval criteria will reflect this too. Code of Practice The draft Code of Practice s first chapter is a set of guiding principles, including non discrimination on the grounds of race, ethnic, social and other criteria. The principles work together to provide for balanced decision making, and any decision maker 2

3 should have regard to these principles in respect of any patient under mental health legislation. The draft Code of Practice makes clear that in the absence of a mental disorder noone may be considered to be mentally disordered because of their political or cultural beliefs, values or opinions; and that appropriate treatment takes account of all a patient s circumstances, including cultural, ethnic and religious considerations Code re SCT The draft Code sets out the importance of culturally appropriate treatment with respect to SCT. Services should involve family members in SCT to ensure treatment is appropriate and supportive to the individual. The draft Code addresses the use of the recall power in SCT. The draft Code makes clear that if the conditions of a SCT are broken the carer should, where possible, be informed. Code re professional roles The Code refers to the need for cultural awareness to be part of the training for both the Approved Mental Health Professional and the Responsible Clinician. This will also be reflected in the competencies for AMHPs/RCs. FURTHER ACTION Monitoring/Research Monitoring The Department of Health (DH) and Welsh Ministers will work with the Mental Health Act Commission and the Health Care Commission to ensure there is proper local and national monitoring of the impact of the 1983 Act as amended. DH will ensure there is monitoring of SCT; the reasons for its use; its impact by ethnicity; and of those other parts of the Act that feed into SCT. DH will discuss with the NHS and Department of Constitutional Affairs (DCA) how best to gather details of the ethnicity of patients attending/applying to the MHRT to allow appropriate analysis. We will look at how DRE Census data is brought to the attention of more practitioners and used as a way of influencing behaviour and the way services are provided. Research/analysis DH will consider whether further research (possibly to look at the impact of the new definition and the changes to professional role) and/or analysis is required of the current differences in the experiences of BME groups under Mental Health Legislation and the possible solutions Delivery Training DRE contains existing proposals for training in cultural capability for the whole workforce. We will look at the need to review training for responsible clinicians and section 12 doctors in England in light of the DRE training, to ensure that diagnosis is not inappropriately influenced by factors relating to patients ethnicity. DH and the NAW will ensure that training on the operation of the Act as amended includes issues of culture, ethnicity, race and religion, building on recently established programmes on cultural competence and values based practice. DH will consider extending the current series of research seminars on values based and holistic approaches to psychiatric assessment and diagnosis, to explore their relevance to the over-representation of certain BME groups among those subject to 3

4 compulsion. We will take forward work with the GSCC to strengthen AMHP training with respect to cultural diversity. Welsh Ministers will work with the responsible regulatory bodies including the Care Council for Wales to build on the current training to emphasise the importance of the social model of illness within a holistic assessment. DH and the Welsh Ministers will work together with the MHRT judiciary to develop a strategy for establishing the popular voluntary courses on Equal Treatment and Diversity, and Transcultural Aspects of Mental Health, as central components of the future training programme. Code of Practice The draft Code chapters will be developed with the involvement of BME representatives. Both DH and Welsh Ministers will work to ensure that the final Codes of Practice promotes race equality by highlighting the importance of diversity and the need to treat a patient in a holistic manner when considering detention and treatment Nearest relative We will discuss with DCA the production of an explanatory leaflet that explains the nearest relative process, and how people can apply to the County Court to displace their nearest relative. Bournewood The draft Code chapters in the Mental Capacity Act Code will be developed with the involvement of BME representatives. CHAPTER 1 INTRODUCTION - RACE EQUALITY IMPACT ASSESSMENT 1. This is a Race Equality Impact Assessment (REIA) on the amendments to the Mental Health Act 1983 produced in accordance with the duties arising from Section 71 of the Race Relations Act [1976], as amended by the Race Relations (Amendment) Act The Race Relations Act contains specific duties for a Government Department to produce a Race Equality Scheme containing arrangements for assessing and consulting on the likely impact of proposed policies on the promotion of race equality; and monitoring its existing policies for any adverse impact on race equality. The Department of Health Race Equality scheme can be found at: cyandguidance/publicationspolicyandguidancearticle/fs/en?conten T_ID= &chk=l6bqXd The Race Equality Scheme for the National Assembly for Wales can be found at: eqdownload/?lang=en The Home Office Race Equality Scheme can be found at: 4

5 2. Under the Race Relations (Amendment) Act 2000 public authorities (in this case the Department of Health (DH)) are required to undertake Race Equality Impact Assessments of new polices and functions. The Race Relations (Amendment) Act 2000 states that public authorities must have due regard to the need to: eliminate unlawful discrimination; and promote equality of opportunity and good relations between people of different racial groups. 3. This REIA focuses on the six items to amend the Mental Health Act 1983 and one to amend the Mental Capacity Act The decision to make these amendments was announced by the Government on 23 rd March 2006, in light of the responses to the draft Mental Health Bill that was published for pre-legislative scrutiny in 2004, and the Government s response to the pre-legislative scrutiny process, which indicated where the Government would make policy changes. 4. The Department undertook consultation as part of the REIA work on the previous draft Mental Health Bill 2004 which was carried out in This consultation only covered the draft Mental Health Bill and did not consider the Bournewood proposals. During 2006 further consultation as part of the REIA was carried out on the new amendments out through a variety of events. The Department held seven regional events (five day, two evening) in England and Wales this Spring with 430 people attending, arranged interviews with over 120 detained patients (carried out by MHAC) and met with a variety of stakeholders: the Mental Health Alliance, Royal College of Psychiatrists, Refugee Council and Metropolitan Police We also received replies to a web based questionnaire and worked together with the National Black and Minority Ethnic Mental Health Network on four consultation events on the amendments this Autumn attended by c.200 people. The material provided and summaries of the consultation can be found at: tationsarticle/fs/en?content_id= &chk=p1xooj 5. The REIA is set out as follows: Chapter 2 Mental health legislation in the wider context Chapter 3 Definition, criteria and appropriate treatment Chapter 4 Supervised Community Treatment Chapter 5 Professional role Chapter 6 Mental Health Review Tribunals Chapter 7 Nearest relative Chapter 8 Bournewood Chapter 9 - The Code of Practice 5

6 CHAPTER 2 CONTEXT Proposals for Legislative reform 6. This chapter sets out existing Government policy to address known inequalities in BME communities experience of mental health services: evidence from the Count Me In census; a systematic research review of the literature looking at the differential detention rates among the BME communities; and analysis of the potential impact of the amendments on other parts of the 1983 Act, including material provided by the Department s REIA Advisory Group. The Government s strategy for tackling discrimination in mental health services in England - Delivering Race Equality 7. The Government has already recognised that there are inequalities in BME communities access to mental health care, their experience of care, and the outcomes of their care. We have also acknowledged that there is discrimination, direct and indirect, in the way that mental health services are planned and provided. 8. That is an unacceptable situation. In January 2005 the Department of Health published Delivering Race Equality in Mental Health Care (DRE) alongside its response to the independent inquiry into the death of David Bennett. DRE is a comprehensive five-year action plan for tackling the complex issues that lie behind the inequalities and discrimination: more responsive services; community engagement; and better information for monitoring progress. Details of DRE are at MentalHealth/BMEMentalHealth/fs/en. 9. DRE sets out 12 measurable characteristics of a reformed service that should be in place by 2010, including two directly related to the use of the Act: reductions in the disproportionate rates of admission and compulsory detention of people from BME communities; and a reduction in the use of seclusion and restraint for BME patients. Count Me In census of mental health inpatients and ethnicity 10. The Count Me In mental health and ethnicity census is carried out jointly by the Mental Health Act Commission, the Healthcare Commission, and the National Institute for Mental Health in England. The first census, which took place on 31 March 2005, covered almost 6

7 34,000 voluntary and involuntary mental health inpatients (99% of those eligible), using services provided by all 102 eligible NHS trusts and 110 independent providers in England and Wales. The census is one of the actions to come out of Delivering Race Equality (DRE) in Mental Health The Census provides a basis for monitoring ethnicity at a national level and for measuring DRE s progress. It is a one day snapshot of the ethnic profile of patients being treated for a mental disorder in hospital and demonstrates the need for the development of a mental health minimum data set (MHMDS) to support monitoring of the impact of services year round. 11. Key findings from the 2005 census show that a) Black African and Caribbean people are three times more likely than white people to be admitted to hospital for mental health treatment and up to 44% more likely to be detained under the Mental Health Act. b) Overall, 79% of mental health inpatients were white British, 9% were black (including Caribbean, African and others) or of white-black mixed ethnicity. 3% were from other white groups, 3% were south Asian, 2% were Irish and 5% were of other ethnic groups including Chinese. c) Admission - admission rates into hospital were three times or more higher for black and white-black mixed groups compared with the average. Rates of admission were particularly high in the "Other Black" category, largely comprising young black people born in the UK. Rates of admission for white British, Chinese and Indian groups were lower than average. Admission rates are estimates and subject to margins of error. d) Routes of referral - 4% of patients were referred by police with the likelihood of being referred almost double for Black Caribbean and Black African groups. Overall, 2.4% of inpatients were referred through the courts, but the likelihood of being referred this way was again almost double in the Black Caribbean group. e) Seclusion - in the three months prior to the census, 3% of inpatients had been put in a closed room for their own safety on at least one occasion. Men from the white British groups were less likely than average to be placed in seclusion. Men from the Black Caribbean, Black African, Other Black and Indian groups were about 50% more likely than average to have been secluded. f) Control and restraint - overall, 8% of inpatients had experienced one or more incidents of control and restraint. The rate was 29% higher than the average for Black Caribbean men. 12. The census was repeated on 31 March 2006, again with a high response rate. It was extended to cover inpatients with learning disabilities, and will cover a sample of patients being treated in the community. The results are expected to be available later in

8 1 Ethnicity and the 1983 Mental Health Act a systematic review 13. The aim of the review was to consider the evidence for greater detention of black and minority ethnic (BME) patients; the differences within and between different BME groups; and the evidence supporting explanations of excess in detention amongst BME groups. The study included a comprehensive literature review and meta-analysis. 38 of the studies pointed to an excess of BME detentions under the Mental Health Act, but only sixteen studies reported data on Asian patients. The result of the study was that relative to white patients, metaanalysis showed: BME people were over three times more likely to be detained than white people; black patients were nearly four times more likely to be detained; Asian patients were approximately twice as likely to be detained. However there was a smaller effect for high quality studies and first episode patients, but this still shows greater detention rates than for white patients. 14. The study concluded that the explanations most commonly advanced for the excess of patient detentions are: patient or race based characteristics (most common); cultural explanations, including patterns of seeking help in different ethnic groups (least researched); illness expression; service characteristics and patient-service interaction. The review concludes that there is a marked absence of evidence to support these explanations (including racism within services, the most commonly cited explanation) and some potential explanations are not considered, particularly the interaction between different variables. 15. The report suggested various implications for future research: routine and central collection of assessment and detention data; more studies on differences between BME groups; more longitudinal studies, including development of patient relationship with services; research into process of detention and application of the Mental Health Act; more hypothesis driven, methodologically robust studies; and research into whether some patient groups are more likely to refuse help, leading to compulsory admission, and if so, why. The impact of the amendments on other parts of the 1983 Act 16. The Department s REIA Advisory Group suggested and devised an analysis tree to look at the possible impact on BME groups of the amendments on areas of the Act that may be affected as a consequence of the main changes. The core of the analysis is the pathway to being detained on the proposed supervised community treatment (SCT) arrangements. The Advisory Group s view was that any differences by race or ethnicity in the use of feeder sections could 1 Greenwood, Singh and Churchill, (2006) Ethnicity and the Mental Health Act 8

9 affect the pathway and proportion of patients considered for SCT. The Advisory Group also argued that changes to the definition of mental disorder are expected to have an impact on all sections in the tree. Similarly, changes to the professions able to undertake the ASW/RMO roles will also impact on assessment and treatment. This analysis has contributed to the chapters on definition, SCT and professional roles. Definition of Mental Disorder Amendment 5: MHRT availability (information) s.4 Amendments 1&2: Definition and appropriate treatment Amendment 4 Professional Roles Mental Health Review Tribunal changes ( monitoring) s.135 Guardianship s.5.2 s.5.4 s.2 s.3 SCT Amendment 3: SCT s.37 /47 s.136 Professional roles responsible clinician and AMHP Appropriate treatment changes impact on criteria for detention Part III (forensic) sections 35, 37/41, 38, 47, 48, 49; recognising that appropriate treatment may increase prison transfers Part IV consent issues including professional roles, capacity determination, and SOAD/SCT Note: the annotations shown on the diagram are not intended exhaustively to cover all the points that matter about the amendments, but rather to identify a direction of travel. Tree analysis by McKenzie, Smith and Heginbotham, 2006 Action The Department of Health and Welsh MInisters will work with the Mental Health Act Commission and Healthcare Commission to ensure there is proper local and national monitoring of the 1983 Act as amended. DH will consider whether further research (possibly to look at the impact of the new definition and the changes to professional role) and/or analysis is required of the current differences in the experiences of BME groups under Mental Health Legislation and the possible solutions 9

10 We will consider how the details of the Count Me In census are brought to the attention of more practitioners and used as a way of influencing behaviour and the way services are provided. CHAPTER 3 DEFINITION OF MENTAL DISORDER AND CRITERIA FOR DETENTION Policy purpose 17. The Bill amends the Act so that there is a new simplified definition of mental disorder which applies throughout the Act. That definition is any disorder or disability of the mind. At the same time the Bill will remove all references to the current four categories of mental disorder (mental illness, mental impairment, psychopathic disorder and severe mental impairment). However, there will be a special provision to ensure the effect of the Act as it applies to people with learning disability will not be changed by the removal of categories. 18. The Bill removes the provision which says that no-one may be dealt with under the Act as having a mental disorder solely by reason of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs (the exclusions ). It replaces it with a reworded exclusion just for alcohol and drug dependence. 19. The Bill amends the criteria for detention under section 3 of the Act (admission for treatment) to include a new test of whether medical treatment [in hospital] is available for the patient which is appropriate given the nature and degree of the patient s mental disorder and all the other circumstances of the patient s case (the appropriate treatment test ). The appropriate treatment test is also added to many of the provisions in Part 3 of the Act which allow the criminal courts to remand or sentence people to hospital or which allow the Secretary of State (in practice the Home Secretary) to transfer prisoners and other detainees to hospital. 20. At the same time the so-called treatability test is to be removed, so that it will no longer be necessary to demonstrate, before detaining them that in the case of patients classified as having mental impairment or psychopathic disorder, medical treatment is likely to alleviate or prevent deterioration in their condition. Instead we are introducing an appropriate treatment test for all patients to ensure that clinically appropriate treatment must be available to all patients at the time of detention. 10

11 General issues raised in consultation 21. There was general concern that the definition and criteria proposed would not contain sufficient safeguards against the inappropriate or disproportionate use of the Act in respect of people from BME groups. For example redefinition, by itself, does not address understanding different needs (refugees, for example, often do not well understand the term mental health ) or the bio-medical nature of the definition of mental disorder. There was, in particular, a worry that stereotyping and misunderstanding would lead to unnecessary and unjustified use of compulsion. People were also concerned that the definition and criteria would be too broad. (The Department s firm view is that the proposed definition of mental disorder does not widen but merely simplifies the definition.) Most respondents to the questionnaire on the DH website thought the new definition would increase detention and disproportionate detention of ethnic minorities because it does not address the underlying stereotyping that contributes to disproportionate rates of detention. 22. Many participants in the seven consultation events commented on the double edged nature of the proposed new definition. There was a view that the new definition of mental disorder should enable access to services according to need whilst not being so broad as to risk bringing into detention people who do not suffer from a severe mental disorder which represents a risk to themselves and/or others. It was considered that an apparently broader or less prescriptive definition could work to promote equality of opportunity and good race relations. For instance there might be room for a less biomedical interpretation of a person s presentation, reduce stigma and lead to a broader range of services. Alternatively it could have an adverse impact because there would be more room for discretion by staff who lack training and so cultural stereotyping and assumptions would continue to influence practice. 23. Many detained patients interviewed by the Mental Health Act Commission (MHAC) thought that a single definition and with it reduced labelling was a good idea, particularly that it would enable treatment to be tailored to people s real needs, but a smaller number said that it would lump together different categories that should remain distinct. 24. With respect to appropriate treatment there was a strong view that a more holistic approach to the cultural and social needs of patients was required, given BME patients current experience of services. If the amendment led to services being culturally appropriate this would be welcomed. But it was felt that the criteria ignored issues of racism and broader social determinants of mental health, such as socio-economic status, and the influence this has in diagnosis and the increased use of compulsion that may result. A number of respondents to the web based questionnaire felt that appropriate treatment had to be clearly linked to 11

12 therapeutic benefit for the person concerned. Detained patients who expressed a view appeared generally supportive of the appropriate treatment test. 25. Opinion was divided about the prospect of striking out the old exclusions of sexual deviancy and immoral conduct and retaining the exclusion for dependence on alcohol and drugs. It was felt that the exclusions might still be useful because of misunderstandings of mental illness in some cultures. It was also felt that the specific mental health needs of refugee/asylum seekers needed to be accommodated. People were concerned about the extent of overlap between substance and alcohol dependence and mental illness and poor levels of service for people with dual diagnosis. 26. Solutions to address concerns about the definition and exclusions included: boosting the Code of Practice to ensure practitioners took account of race and culture, and monitoring its fair application; mandatory learning and development for all relevant practitioners (including the police) at all stages of training that promoted cultural competence; ensuring services reflect the needs of the local ethnic minority communities and be based on the needs of individuals; the definition should take account of the needs of different ethnic groups; the Bill should require account to be taken of the patient s social and cultural background (suggested by the BME Network); advocacy should be widely available; principles of non discrimination and equality should be included in legislation. Assessment of Impact The definition of mental disorder 27. The re-wording of the definition of mental disorder does not change its meaning. It will continue to cover all disorders and disabilities of the mind that are not expressly excluded. As now, it will be for clinicians to use their professional skills and judgement to diagnose the presence of mental disorder. The wording of the definition in legislation is neutral. It does not inherently discriminate on the grounds of race, and is therefore capable of being applied in a way that avoids any such discrimination, provided that diagnosis takes full account of all the patient s circumstances including their social and cultural background. 28. However the Government is conscious that this has not stemmed concerns that the current definition does not sufficiently protect against a disproportionate impact on certain ethnic groups in practice. One explanation put forward is that higher rates of diagnosis of certain mental disorders may be due in part to differences in illness models between patients from certain ethnic groups and their psychiatrists. We are 12

13 grateful to the Department s REIA Advisory Group for the following discussion of the research literature. 29. Research shows that Black African or Black Caribbean people are at a higher risk of being diagnosed with psychotic disorders (such as schizophrenia or mania) than the population in their countries of origin or British White population of England 2. The reasons for this are unclear. Psychosis can be seen as a problem which develops over a life course. The vast majority of people who develop a psychotic symptom do not go on to be diagnosed as suffering from a psychotic illness. But certain factors make it more likely. An individual s constitution, genetic factors and childhood trauma, both physiological and psychological mean that people have different levels of vulnerability to developing mental illness. Socio-economic, community and other life events may increase that vulnerability at sensitive times in our lives. Factors such as living in a city, social isolation, racism and the use of drugs facilitate the development of psychotic illness whereas education and social support are considered to be prevent it. 30. There are therefore two interlinked issues: firstly, possible causal factors that raise the risk of psychosis in some BME populations, either by increasing vulnerability or precipitating the development of psychotic illness factors; secondly, factors that increase the risk of a diagnosis and treatment for mental illness in people from BME groups with psychotic symptoms. Factors linked to the first issue concern the nature of development of specific illnesses and the differential risk factors to which different different populations are exposed. Factors linked to the second issue relate to the interaction between an increased risk of distress and how this impacts on specific BME populations and the response of services to it. 31. A number of factors linked to the first issue provide some explanation of the high rates of mental illness in certain BME groups. Increased rates of mental distress and mental illness could be a reflection of social disadvantage and racism and could be linked to urbanisation (many of the incidence rate research studies compare BME and British White urban samples). An increased rate of psychosis could be the result of increased vulnerability because of the effects of racism on personality development or the direct effect of life events such as racist attacks, abuse and micro-aggressions in precipitating illness, or increasing risk of illness in vulnerable people. 32. Black Caribbean and Black African patients in particular may develop paranoid attributions because of discrimination, which could lead to 2 Sharpley MS, Hutchinson G, McKenzie K, Murray RM (2001) Understanding the excess of psychosis among the African-Caribbean population in England: review of current hypotheses. British Journal of Psychiatry.178:s60-s68. 13

14 paranoid delusions 3. Rates of delusional ideas have been shown to be raised significantly in those reporting multiple discrimination including discrimination based on skin colour or ethnicity 4 ; personal experience of racism and perceiving racism in society both increase the risk of common mental disorders and psychosis 5. It should be stressed that racism is complex. Racism is more than abuse, harassment and racially aggravated crime: it may well be a factor in the aetiology of mental disorder but there are dangers of medicalising appropriate social struggle or stereotyping a group s identity as nothing more than a response to discrimination Although hallucinations and paranoid ideas may be more common among some BME groups for a number of reasons (Sharpley et al ), this does not mean that the rate of psychotic disorders will be similarly raised. There are significant differences between countries in the percentage of people who report a psychotic symptom in surveys and who later go on to develop a psychotic disorder. Furthermore within countries there may be differences in the positive predictive value of delusions and hallucinations as a predictor of subsequent mental illness. One way of assessing whether people in different ethnic groups with similar diagnoses actually have the same illness is to compare prognosis. If people are properly categorised then, once other factors known to affect outcome such as social class, sex, education, illness length and receipt of services are taken into account people in the two groups should have similar outcomes. Work on the prognosis of mental illness in people of Caribbean origin has demonstrated significant differences in outcome compared to white people. It has been argued that this indicates that on balance Caribbean groups with psychosis may have a different illness to white people with psychosis. 34. People of Black African and Black Caribbean origin are greater than 3 times more likely to be admitted to hospital under compulsion than White patients 8, 9. The reasons for this are unclear. One explanation is that African-Caribbean patients present as more disturbed than White 3 As 2 above 4 Janssen I, Hanssen M, Bak,M, et al (2003) Discrimination and delusional ideation. British Journal of Psychiatry 182: Cooper B. (2005) Immigration and schizophrenia: the social causation hypothesis revisited. British Journal of Psychiatry 186: Chakraborty A, McKenzie K. (2002) Does racial discrimination cause mental illness? British Journal of Psychiatry. 180: As 3 above. 8 Bhui K, Stansfeld S, Hull S, et al. (2003) Ethnic variations in pathways to and use of specialist mental health services in the UK: systematic review. British Journal of Psychiatry.182: Morgan C, Mallett R, Hutchinson G, Bagalkote H et al. (2005a) Pathways to care and ethnicity. 1: sample characteristics and compulsory admission. Report from the AESOP study. British Journal of Psychiatry. 186:

15 patients. However, the AESOP study 10 found that although diagnosis and perceived risk were independently associated with compulsory admission, after adjustment for other factors, neither accounted for the excess admissions. A further suggestion is that Black African and Black Caribbean communities tolerate and consider functional a higher level of hallucinations or thought disturbance which they are less inhibited about describing. These are interpreted using Western psychiatric criteria (ICD10, DSM IV) on a lower threshold than for White patients as evidence of mania or psychotic disorder. Others have pointed to racism within services (Littlewood and Lipsedge, 1997) or culturally biased diagnosis (Fernando,1995) as the reason. 35. In summary, people of Black African and Black Caribbean origin experience more psychotic symptoms than White people in the UK. They are also more likely to be diagnosed as suffering from a psychotic illness. Whether these diagnoses are made appropriately is unclear. Similarly their natural course is unclear. 36. It is the Government s view that the revised definition of mental disorder does not change its meaning. It is already inherent in the legal definition that a mistakenly identified mental disorder cannot count as a mental disorder. That is true whatever the reason for the mis-identification, and certainly includes cases where culturally appropriate beliefs and behaviours are mistakenly thought to be signs of mental disorder. Clinicians (and other decision-makers) must take account of all relevant factors when deciding whether a person has a mental disorder, and what the likely consequences of that disorder are to be. (Whether it will nonetheless lead to any change in practice cannot be predicted with certainty, though we do not expect it to.) 37. Given the need for proper account to be taken of people s cultural and social background is already implicit in the Act, and made explicit in the Code of Practice, the Government thinks the appropriate way of dealing with differences in illness models is ensuring that there is high quality education, training, and monitoring to help ensure that diagnosis is not inappropriately influenced by factors relating to patients ethnicity. This could be supported by work to examine the effects current diagnostic classifications may have on different ethnic groups. 38. The draft Code of Practice emphasises that evidence about a person s medical condition should not be looked at in isolation from a patient s values, beliefs or circumstances, including ethnicity and race 10 As above and Morgan C, Mallett R, Hutchinson G, Bagalkote H et al.(2005b) Pathways to care and ethnicity. 2: source of referral and help-seeking. Report from the AESOP study.british Journal of Psychiatry.186:

16 (draft Code paragraph 1.1a). Decision makers should make every effort to understand and appreciate the individual s perspective on their situation and what they need and want from services. But there is a risk that by picking out a particular factor in legislation (such as race or gender) it may be implied that other equally important factors are either not relevant or of less importance. It should also be borne in mind that no-one may be detained solely because they are diagnosed as having a mental disorder unless all the relevant criteria are met. Hospitalisation always has to be an appropriate response to the patient s condition and there has to be a good reason to prefer detention to any other course of action. In most cases, the new appropriate treatment test must be met too. 39. In the Draft Code chapter on guiding principles, it is clearly stated that patients should not be discriminated against, either directly or indirectly, on the grounds of race, colour, ethnic or social origin. Decisions taken under the Act should be free from direct or indirect discrimination on the grounds of ethnic or social origin. The principles reflect the changed legal framework since the Code was last published in 1999, including the Race Relations (Amendment) Act The Government recognises the strongly held views on the issue of principles, including views expressed by the BME Mental Health Network and respondents to the web based questionnaire. We are committed to the reduction of any discrimination in the provision of mental health services. But we do not agree that the law and the definition of mental disorder is inherently discriminatory. The legislation is neutral and may be applied in a way that avoids any such discrimination in line with the Race Relations (Amendment) Act 2000, which already place on public bodies a duty to promote equality of opportunity and good race relations. This is best addressed through the guiding principles including the non discrimination principle - which open the new draft Code of Practice, the actions arising from the REIA and the ongoing work on DRE. These actions demonstrate the Government s commitment to move to a position where the operation of the Mental Health Act is further aligned with the positive general duties arising from the Race Relations Amendment Act 2000 to ensure that people from BME backgrounds are not adversely affected when using mental health services. Action Point DRE contains existing proposals for training in cultural capability for the whole workforce. We will look at the need to review training for responsible clinicians and section 12 doctors in England in light of the DRE training, to ensure that diagnosis is not inappropriately influenced by factors relating to patients ethnicity. 16

17 Categories of mental disorder 41. The abolition of categories of mental disorder means that the main longer term powers of detention in the Act (especially admission for treatment under section 3, hospital orders under section 37 and transfer directions under section 47) will in future be applicable to all forms of mental disorder, provided the relevant criteria are met. 42. It is difficult to say with precision what new types of disorder this will bring within the scope of these powers, as the existing categories do not map straightforwardly onto clinical classifications of disorders. The Government s policy intention is simply to ensure that the Act should not continue to contain arbitrary restrictions on the use of detention where it is justified by mental disorder of any type. But it is likely that the removal of the categories will mainly extend the use of relevant sections of the Act to forms of personality disorder, autistic spectrum disorders and psychological dysfunction associated with brain injury or damage in adulthood, where these various disorders do not result in abnormally aggressive or seriously irresponsible conduct. It does not of course follow that any people with these conditions will in fact be detained, since the relevant criteria about need and risk must always be met. 43. In consultation the main discussion was whether the abolition of the four categories would lead to more inappropriate detention and fewer accurate diagnoses or whether the abolition of labels would mean services were more tailored to people s needs. The Department s view is that any changes to patterns of detention will not be significant. There is little evidence that the existing pattern of detention is frustrated by the current system of categorisation. If there were to be an increase in properly justified detentions as a result of these changes, this would imply that patients were getting treatment they would otherwise probably not have received. 44. The removal of categories will widen the legal scope of certain criminal justice disposals in Part 3 of the Act which are at present limited only to one or two of the four categories. Remand to hospital for treatment under section 36 and transfer of unsentenced prisoners to hospital under section 48 will no longer be limited only to people suffering from mental illness or severe mental impairment, although the latter will continue to be available only in cases of urgent need. Similarly the (rarely used) power of giving a hospital order without a conviction under sections 37(3) and 51(5) will no longer be limited just to mental illness and severe mental impairment. The power in section 45A to give a hospital and limitation direction concurrently with a prison 17

18 sentence will in future be available in all cases of mental disorder, not just psychopathic disorder. 45. These changes remove arbitrary restrictions on the powers of the court to make appropriate disposals in cases where offenders (and other people in contact with the criminal justice system) suffer from mental disorder. It is difficult to predict the extent to which the amendments in the Bill will lead to greater use overall of these and the other powers in Part 3 of the Act. With respect to BME communities, the 2005 Count Me In Census 11 showed that male inpatients from Black Caribbean, Other Black and White/Black African Mixed groups were more likely than the average to have been admitted to hospital under a restricted hospital order. By contrast the Black African group had a significantly lower rate than the average for transfer from prison, while the rate was slightly higher than average for patients from the Other White group. 46. The amendments in the Bill may allow certain people to be diverted or transferred to prison under Part 3 who could not be now, dependent on the overall availability of services. This would be people in categories of disorder to which particular powers do not currently apply and people whose disorders fall outside the current four categories. However, the numbers of people this will affect overall is likely to be small. Exclusions 47. The Government expects that the removal of the exclusion for promiscuity and other immoral conduct will have no material effect on either numbers of patients detained, or BME patients in particular, since neither could reasonably be regarded by itself as a mental disorder. 48. The retention of the exclusion for alcohol and drug dependence will simply maintain the legal status quo. However, the Government does hope that there will be less scope to misunderstand the revised wording as excluding people suffering from alcohol and drug dependence, even if they are also suffering from another mental disorder which warrants detention. This may mean that some people who suffer from drug dependence and another mental disorder may in future be detained where, because of misunderstanding, they are not now. That is to be welcomed, if such detention is properly justified, whatever the ethnicity of the people concerned. The Government does not think it will involve many people, and of those that it does affect, some would anyway have gone on to be detained at a later date. 11 Count Me In Healthcare Commission,

19 49. The Government does not believe that the removal of the exclusion for sexual deviancy will have a significant impact on the number of people detained, although again it is hoped that it will prevent people being excluded from justified detention either because of the particular nature of their disorder or through misunderstanding of what the exclusion means. 50. In consultation, it was suggested that the new exclusions should be used to help reduce (or guard against further increase in) disproportionate detention of particular ethnic groups. In particular it has been suggested that the Act should exclude cultural, religious and political beliefs and behaviours from the definition of mental disorder. 51. The Government notes that an exclusion of this kind was included by the Scottish Parliament in the Mental Health (Care and Treatment) (Scotland) Act It is also aware that similar exclusions often appear in equivalent legislation elsewhere in the Commonwealth. However, the Government does not believe that the inclusion of such provisions in legislation would be appropriate. Cultural, religious and political beliefs and behaviours which are not signs or manifestations of an underlying disorder cannot by themselves be mental disorders so legally such an exclusion would be of no effect (see draft Code paragraph 1B.5). And if they were excluded from the definition this might imply that, but for the exclusion, they would be mental disorders. 52. There is also the practical risk that such an exclusion could be misunderstood in a way that could prevent the treatment of patients who genuinely need to be made subject to the provisions in the Act. Legislation should not imply that a mental disorder that manifests itself in unusual behaviour which is not culturally appropriate to the individual should prevent treatment of a patient when, having taken account of all the circumstances, that is clearly necessary. 53. The draft Code of Practice states that patients should not to be discriminated against, either directly or indirectly, on the grounds of race, ethnic or social origin (draft Code, paragraph 1.1a). The Government therefore believes that the Codes of Practice are a more appropriate vehicle in which to reinforce the message that cultural, religious and political beliefs do not constitute mental disorders, but may sometimes be symptoms of a clinically recognised mental disorder. Criteria for detention 54. The new appropriate treatment test will apply to detention under section 3 and under the main criminal justice disposals under Part 3 (remands for treatment under section 36, hospital orders, transfer 19

20 directions and hospital and limitation directions). At the same time, the so-called treatability test will be removed 55. As described above, it has been suggested that the appropriate treatment test is too imprecise. In consultation, a strong view was that in conjunction with the removal of the categories of disorder, appropriate treatment will lead to a lower threshold for detention. But there was also a range of views that the new test could lead to a sharper focus on individual service users needs too. 56. The Government does not agree with the views in consultation that the appropriate treatment test will permit unjustified detention, nor disproportionately disadvantage BME groups. It is first and foremost a guarantee that clinically appropriate treatment must be available at the time of detention. In fact we think that the inclusion of the appropriate treatment criteria could benefit BME patients because clinicians will be also required to consider, amongst other factors, whether the treatment available is culturally appropriate. For example, the test may benefit BME patients if it highlights the unsuitability of ward arrangements for BME patients raised in the most recent MHAC report It should be stressed that it is not the Government s intention to make it easier to detain on the grounds of dangerousness except where it is clinically appropriate. Nor is the effect of the appropriate treatment test to permit detention without proper treatment. In fact the test demands that appropriate treatment be available at the time of detention. In other words, removal of the treatability test in no way diminishes the requirement that detention must be clinically appropriate. 58. The abolition of the treatability test is also intended to benefit people with mental disorders more widely. The Government s view is that because the test singles out particular groups of patients it has led to a false presumption that some particularly those with severe personality disorders are untreatable. This has not helped the development of much needed services for these conditions, with the result that some people do not get the treatment they need, whether or not compulsion is being considered. That puts them and sometimes other people at risk, and can mean people end up in prison when in fact what they need is treatment. 59. Part of the Government s aim is that the appropriate treatment test should allow and facilitate the detention of certain people who ought to be detained now but are not. But it does not expect that to be a large number. The changes could in fact reduce the overall number of detentions if they help encourage better and earlier interventions for people with personality disorder. Overall, therefore, it is the 12 Mental Health Act Commission (2006) In Place of Fear 20